The cliché about a verbal agreement being as good as the paper it’s written on is true – especially in family law.
In Ontario, the Family Law Act, R.S.O. 1990, c. F.3, requires that “domestic contracts” (“pre-nups”, marriage contracts, separation agreements, cohabitation agreements or family arbitration agreements) be in writing, signed by the parties and witnessed (section 55(1)).
Despite your wishes, not everything that you and your partner (or former partner) agree to are legally enforceable even if you both agree to include it in the terms of a domestic contract.
For example:
- “Chastity Clauses” – basically a no cheat clause with consequences if you actually went on that date through Ashley Madison;
- Decision-making and residency arrangements for children in the event of a future separation (i.e., I keep the kids and you can keep the house);
- Forfeiting possessory rights in a matrimonial home (i.e., one spouse must leave the matrimonial home immediately or within X number of days of separation occurring);
- An Agreement on How to Resolve a Disagreement in a Marriage Contract (i.e., locking yourself into a mediation-arbitration process in the event of a future separation);
- No child support even though there is income to pay child support and children entitled to support;
- Unconscionable bargains (in exchange for these magic beans you can keep everything).
In addition to ensuring the “content” of domestic contracts are legally enforceable, your family law lawyer would assist you in the negotiation process. Canadian courts have indicated time-and-again that the “process” for negotiating a domestic contract matter. A valid domestic contract generally involves the following:
- Exchanging full and frank financial disclosure – so that each party can assess and understand their rights and obligations under family law (what you don’t know can absolutely hurt you both in the short-term and long-term);
- Each party obtaining legal advice (from different lawyers) before they sign a domestic contract so that they understand both the agreement terms, their legal entitlements and the consequences of same;
- Free from undue influence by the other party (i.e., threatening or putting pressure on you during the negotiating process)
- Negotiations free from unreasonable deadlines (i.e., because a property being purchased or imminent wedding date).
It is important to ensure that you get the appropriate legal advice and information before entering into a domestic contract to ensure that you haven’t bargained against yourself.
The above information is not legal advice of any kind, and you should be sure to speak to a qualified family law lawyer about your specific situation. For more information, call us at 905-273-4588 or email us at contact@kainfamilylaw.com to book a free 30-minute consultation with one of our experienced family law lawyers.